CLAIM NO. F001514
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 1, 2002
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE FREDERICK S. `RICK’ SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by HONORABLE BRUCE ANIBLE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed
OPINION AND ORDER
The claimant appeals a decision of the Administrative Law Judge filed on June 21, 2001. This case is presently before the Commission after a remand to the Administrative Law Judge. In the remand order dated June 4, 2001, the Commission found that the Administrative Law Judge failed to make adequate findings, mischaracterized the claimant’s disposition testimony, referred to proffered evidence and utilized an improper causation standard. The Administrative Law Judge found that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury. Based upon our de novo review of the record, we affirm the decision of the Administrative Law Judge.
The claimant contends that she sustained a specific incident injury on January 24, 2000, as she lifted a tray of glasses from the dishwasher. The respondent contends that there are no objective findings of injury. The respondent argues that the claimant sustained an injury as she was climbing through a window to get into her house after being locked out.
The claimant presented to the Baxter County Regional Emergency Room on February 11, 2000, stating that she was injured at work on January 24, carrying a heavy tray. She complained of pain in her back. She was given Flexeril and lifting restrictions. Another record indicates that the claimant had a “piercing” pain in her shoulder area.
On February 25, 2000, the claimant presented to Dr. Bruton, her family physician, with a history of lifting a tray at work and feeling a sudden pain. She reported difficulty with back pain since the alleged lifting accident. Muscle relaxers prescribed by the emergency room doctor for a pulled muscle made her agitated. He examined her left shoulder and noted fair range of motion and no palpable defect. He also noted pain in the rhomboid major muscle group medially on the left. He prescribed Vioxx for her thoracic back strain and diagnosed a probable ligamentous tear injury.
On February 28, 2000, the claimant reported to Dr. Bruton with continued complaints of pain in the scapular area. The claimant complained that the Vioxx medication made her drowsy and upset her stomach. She was scheduled to return to work that night and wanted an x-ray and something else for pain. The x-ray was normal. Dr. Bruton gave the claimant Ultram and advised her to use her back. Dr. Bruton prepared a return to work certificate stating that the claimant was under his care from February 25 to March 1, 2000, and could return to full duty on March 1.
Dr. Bruton prepared a statement on April 10, 2000, stating that “it is my opinion based upon a reasonable degree of medical certainty there are objective findings of muscle spasms.” A handwritten addendum to that statement reads: “There was evidence of muscle spasms when seen on 2/25 and 2/28. I can not determine whether this condition has continued.”
In the claimant’s deposition, she stated that she did not climb into a window to get her keys. The claimant additionally testified that she did not tell her co-employees or her supervisor that she had climbed in the window or that she had hurt herself. She stated that she had an extra key which she used to let herself back inside to get her regular keys. The claimant indicated that she did not injure herself at that time. She stated that Dino Rabaza (her boss) thought this, but it was not what happened. The claimant stated that Mr. Rabaza asked her why she was late and she told him she got locked out of her house. The claimant testified that she got a “humongous” pain in the left side of her back by her shoulder after picking up the dishwasher tray, and she “thought I was going to get well and I didn’t say nothing to Dino. I went home.” The claimant failed to tell anyone at work about this pain. The claimant testified that she called Mr. Rabaza Tuesday morning to tell him she hurt her back and he told her she was lying. The claimant testified that she did not go the doctor right away because she did not have insurance or the money. She went back to work in March for another restaurant. The claimant started work for the respondent-employer on January 10 and worked approximately 3 weeks.
The claimant testified that she did not tell Mr. Rabaza that she hurt herself before coming to work the day of the alleged injury. She also denied that she was late that day. She stated that she called Mr. Rabaza the day after she hurt herself and he “denied me.” The claimant testified that she did not tell Heather Stainbrook or any other co-workers that she hurt herself at home prior to her alleged injury.
Mr. Rabaza testified that the claimant was late on the day of the alleged injury. The claimant explained to Mr. Rabaza that she forgot her keys in the apartment and had to climb through the window and she hurt herself. That night when the claimant left, he said he would see her the next night. She did not complain of a work-related injury. The next day claimant told Mr. Rabaza that she was not coming back to work. When he asked her why, she told him she hurt herself “lifting that rack of glasses.” He stated that:
She said she wanted to go to the doctor. I said, well, you didn’t fill out a report and you didn’t tell me anything last night. So she insisted she wanted to go to the doctor, so I give her the name of the insurance, Thompson Insurance. She handles my insurance. This something you, she asked me, what are you going to do about it, me. I say I’m not going to do anything about it. You get in touch with my insurance.
The claimant described an injury to her supervisor the day of her alleged injury. Her supervisor testified that the claimant said she hurt herself climbing through her window to get her keys. This was offered as an excuse for being late. The claimant did not report an injury involving a tray of dishes that night, even though the claimant and her supervisor spoke at the end of the work day. The claimant stated at deposition that she was late because her keys were locked in her apartment and that she used her spare key to go in and get them. At the hearing she testified that she was not late and that she did not have a conversation with Mr. Rabaza about her keys or at all the day of her alleged injury. The claimant’s testimony is replete with inconsistencies. Further, the claimant’s testimony is contradicted by two other witnesses. It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v.Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. ArkansasDept. of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603
(1995); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593
(1995). Neither the Workers’ Compensation Act nor Arkansas case law contains a requirement that the Commission personally hear the testimony of any witness. There is nothing in the statutes that precludes the Commission from accepting or rejecting any finding made by the Administrative Law Judge, including findings pertaining to the credibility of witnesses. Stiger v. State Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335 (2000).
We find the claimant not to be a credible witness and give her testimony little weight. The claimant’s testimony is the only evidence in the record that supports a finding of compensability. Since we find the claimant not to be a credible witness, her claim must fail. Therefore, after we consider the evidence, we cannot find that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. Accordingly, we hereby affirm the decision of the Administrative Law Judge.
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
COMMISSIONER
I must respectfully dissent from the majority opinion finding that claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury.
The decision in this case turns primarily on the credibility assessment of the witnesses’ testimony, in particular that of claimant. Claimant is a very poor communicator and historian, which results in considerable difficulty comprehending and answering questions.
Claimant testified that on January 24, 2000 she sustained an injury to her upper back and shoulder while lifting a tray of dishes. She denies Dino Rabaza’s testimony that she was late for work on that day and that she informed him that she had hurt herself when she crawled through the window at home. Claimant was unable to afford medical treatment until she presented to the emergency room of a local hospital on February 11, 2000. While the records of this visit do not detail any specific objective medical findings, I would point out that the records do not contain much in the way of findings. Claimant presented to Dr. Ronald F. Bruton, her family physician, on February 25 and February 28, 2000. Dr. Bruton reported that he observed muscle spasms on these particular visits.
Based on my de novo review of the record, I find that claimant has met her burden of proving by a preponderance of the evidence that she sustained a compensable injury. Accordingly, the opinion of the Administrative Law Judge should be reversed.
______________________________ SHELBY W. TURNER, Commissioner